Thursday, April 27, 2017

Trumpites and others should hold some feet to the fire

Well, well. What are the odds that those praising everything Trump does that could be remotely regarded as conservative will even mention this? It appears that the new DOJ is continuing to defend the suit against religious organizations that object to the Obama-era HHS contraception mandate for employers.

Prima facie, this is another broken campaign promise, and a particularly weird one. Nobody who was remotely conservative, or Republican, nor the vast majority of the American public, wanted these lawsuits in the first place. Only wild-eyed ideologues insisted on the contraceptive mandate, and Congress never passed it. It was made up out of whole cloth by Kathleen Sebelius in the Obama HHS and imposed as a pure diktat upon objecting organizations. The Obama administration spent large amounts of unnecessary money defending it, over remands, etc.. Dropping it now lies entirely within the power of the executive branch of government and is precisely the kind of no-brainer move that one might have expected even from lazy, unprincipled Donald Trump. No congressional action (such as repealing Obamacare) is necessary. Nobody wants this lawsuit, and it's wasting the taxpayers' money. And it looks bad. Who wants to be persecuting the Little Sisters of the Poor? Trump campaigned explicitly on a promise of stopping this nonsense. Jeff Sessions is now in charge at DOJ, and Tom Price at HHS. What are we waiting for?

It may just be some purely temporary delay. Perhaps this recent filing in the case will be followed very shortly by the administration's dropping the defense of the suit. Perhaps this is mere incompetence on the part of the Trump administration rather than actual promise-breaking.

But I'm going to go out on a limb and make a prediction: If Trump's feet are not held to the fire, the Little Sisters, East Texas Baptist, and other organizations will continue to be pressed to comply with an HHS contraceptive mandate. Trump's heart was never in this particular promise. He is lacking (as we Never Trumpers have always said) any sense of moral obligation to keep his promises. His daughter is very socially liberal and is one of his most important advisers. What he does in governance is spasmodic and to a terrifying extent random. He'll make a gesture that conservatives love one day and a gesture in the other direction on another day. One day he'll repeal the Obama letter concerning the interpretation of Title IX to include transgenderism. The next day he'll drop the attempt to repeal an Obama Executive Order requiring federal contractors not to discriminate on the basis of transgenderism, and say he's proud to be the first Republican President to support "LGBT" rights. Yes, he rescinded onerous reporting and proving requirements for federal contractors, but he left the non-discrimination order in place, so any true claim of discrimination on the basis of John's trying to turn himself into Jill will still scotch a federal contract. Despite homosexualist squawking, Trump came out on their side on this, but we scarcely heard a peep about it from Trumpites and their fellow travelers. Once when I brought it up on Facebook I realized that the person to whom I'd brought it up had no idea what I was talking about and thought I was confused about the Title IX issue instead.

Fortunately The Stream (which has published way too many pro-Trump articles, in my opinion) is asking the obvious question: Why is the Trump Administration Continuing the Fight Against Nuns and Baptists?

Why, indeed.

We need more outlets and op-eds asking the same.

One lawyer on Facebook tried to tell me that the DOJ has no choice if the regulations from HHS aren't changed because they have an ethical duty of "zealous advocacy." Puh-lease. Jeff Sessions has already dropped a lawsuit against Texas's voter ID laws. The DOJ drops suits all the time, when it is on either side, if it doesn't consider the public interest well-served by continuing a suit--which is obviously the case here. Here and here are more examples. I note that in the second of those two the Obama DOJ refused to defend DOMA because they decided on their own that it was unconstitutional! Sessions could simply look at the arguments and decide that the HHS regs. violate either the Constitution or the RFRA (a good case can be made for either), and any "ethical duty of zealous advocacy" disappears in a puff.

But in any event, this just backs the question up as to why Tom Price doesn't rescind the Obama-era diktat, promulgated by the department of which he is now the head. Or why he doesn't make a single move to do so. Another claim I've heard is that anything Price would do would require an onerous, painful process of "notice and comment" in order to repeal Sebelius's diktat, which (supposedly) she had to follow to pass it.

Yes, we all remember how incredibly painful and difficult it was for Sebelius back on August 1, 2011, when she handed down the contraceptive mandate from On High. Yes, yes, it was an "interim rule" (according to La Wik) which only became final on January 20 of 2012, so presumably the intervening 4 1/2 months contained that allegedly painful process for the HHS. But somehow that didn't stop her, did it? And organizations like the Little Sisters were on notice in the 4 1/2 months that this was going down.

And, I note, Tom Price hasn't made a single legal move (I will accept correction if someone gives it to me, with documentation) that resembles Sebelius's declaration even of an interim rule that reverses the Obama-era rule. If he did, that would give the DOJ the most obvious of reasons for dropping defense of the suit. This is accepting for the sake of argument that Price would have to go through a several-month (at least) "notice and comment" process to reverse a burdensome rule that is exactly similar to a process required to promulgate a new rule. I don't actually know that of my own knowledge. But if he does, he should get it started right now and set the DOJ's tender legal consciences to rest so the poor chaps don't feel driven to continue defending the suit.

I don't know what Price is thinking, because he explicitly opposed the mandate as a member of Congress. Perhaps Trump could give him a nudge? Odds are, though, Price cares more about this (in the right sense of "cares") than Trump does.

This is the kind of thing that the administration should be held accountable for. We all know that, if Obama were still President, the conservative headlines would be about what the "Obama administration" is doing in continuing the fight against the Little Sisters and other organizations. No one on the right would sit around twiddling their thumbs and telling us, now, now, don't blame Obama, the DOJ has a duty of zealous advocacy, and the HHS would find it so difficult to change the regs. back again. No: This would be laid squarely at Obama's door, as continued persecution coming from the executive branch. Let's apply the same standard to Trump. If he has good will in this matter he needs to speak up, and the same for relevant officials such as Tom Price.

Actions speak louder than words, and so does conspicuous inaction.

If pro-Trump conservatives want to argue that they weren't played for suckers, they need to stop cherry-picking Trump's behavior in office. Let's start with the HHS mandate. It's an easy case.


Ben Carmack said...

I shared this on FB, and a friend quickly posted this post from Eric Erickson at Resurgent, no friend of Trump.

Lydia McGrew said...

I like Erickson, and I fully admit he's no Trumpite, but I'm not happy with that. Here's why:

1) Tom Price could perfectly legally promulgate an "interim rule" overturning the purely-administrative HHS contraceptive mandate. Liberals, live by the HHS mandate, die by the HHS mandate. That is the exact procedure Sebelius went through to pass the mandate. After the interim rule there follows a period of comment, etc., but it would give the DOJ an excellent excuse not to defend the suit.

2) Lawless judges gonna lawless. There would be nothing remotely subject to rational legal censure if Price started the ball moving. But if some lawless judge is going to try to make paid-for contraception a constitutional right, it won't matter one whit what process you go through.

3) If you really, really want to make Price slow waaaay down (even more than Sebelius did), he could promulgate a *proposed* rule removing the mandate and start the ball rolling that way. That's even *less* "hasty" in appearance than an "interim rule." But he's not doing diddly.

4) This sentence had exactly the opposite of its intended effect on me: "In fact, what I am being told is the administration is keeping the lawsuit alive to see if they can structure a settlement that would be beneficial to the groups being sued and prevent other adminstrations from trodding on their religious liberty in the future."

What? What? First, the suit is actually *coming from* the groups *against* the administration, so there's a slip right there. But waive that. Notice what this would mean: That the only groups who would get to opt out of the contraceptive mandate would be *those specific groups who went to the expense to sue*.

No no no no no. The mandate itself should be *revoked*. It shouldn't just be selectively waived by way of court settlement with those very few, highly specific, named organizations that went to the trouble to sue.

If what Erickson is "being told" here is correct, this signals a kind of wimping out on the part of the administration: Okay, you squeaky wheels, you'll get let off the hook, but we're going to leave the mandate itself in place for everyone who doesn't have the time, money, and energy to challenge it in court.

Notice that Leonard Leo (an administration op in whose interests it is to paint what the administration is doing in a positive light for conservatives) says *nothing* about what Tom Price as head of the HHS itself could do. Nothing. He just talks about the danger of Trump's issuing an executive order.

This kind of evasion of the obvious question (what about Price? what about Price? what about Price?) is pretty telltale, in my opinion.

Ben Carmack said...


I was unsure what to think when I read the response from Erickson, but your pushback here is helpful to me in thinking this through.

I suppose I ought to be more cynical about these things.

As an aside, Leonard Leo I believe was fairly instrumental in getting Neil Gorsuch nominated. I first read his name in a CNN story about Gorsuch's background and religious faith. Leo was quoted describing Gorsuch's early meetings with President Trump at which, Leo informed CNN, the subject of legal abortion and Roe vs. Wade_never_ came up. Comforting isn't it?

Lydia McGrew said...

TBF, it's been standard practice for decades for nominated federal justices to say (and for the administration to say) that the subject of Roe v. Wade was never discussed in their meetings with the President. The idea is that it gives the Democrats an excuse to say that some sort of nebulous "independence of the judiciary" has been violated and even, if the justice is confirmed, to pressure him to recuse himself in abortion cases.

All of that is Marquis of Queensberry rules; it's not written down anywhere. The Senate had to use the nuclear option anyway, so some of us rampagers think the time has come to throw those rules out the window. It's frustrating to me, as a furious anti-alt-righter, to see how nowadays my own iconoclasm is likely to be confused with theirs. When *I* say, "Let's stop hobbling ourselves with these exaggerated Marquis of Queensberry rules," what *I* mean is something like, "Go ahead and have a litmus test for judges, which is clearly related to constitutional originalism, let the judge tell the Senate that you discussed it, and then ram him through using the nuclear option. And no, he should *not* recuse himself." I don't mean, "Threaten people's lives and children, use vile language on Twitter, or sit around sniggering and getting vicarious thrillz out of those who do."

Anyway, that's a digression.

I wouldn't really have minded so much if Gorsuch, Leo, Trump, etc., had confined themselves to the *standard* close-to-the-vest stuff. This includes swearing a blue streak that Roe and Obergefell were not discussed with the President, refusing to say in the hearing how one would rule on a specific case, and doing all of this in the name of uber-professionalism.

I minded far more what Gorsuch *did* say, that sounded to my ears like signaling that he would not overturn Obergefell. And then they filibustered him anyway. Sigh.

Tony said...

It actually makes little sense even if you assume someone with power up his sleeve at HHS or Justice wants to keep the idiotic rule. The Supreme Court in its per curiam ruling that told the parties to go back to the table and hammer out a regulation that the charities could live with. Sure, they couched it as "we are not deciding the issue", but when you read the language it is clear that they are saying "we won't take an answer that the Little Sisters can't live with." When they vacated the lower court decisions, they only vacated the ones AGAINST the charities, they did not vacate the decision FOR the charities. Whether they proceed in the court cases or not, they are going to LOSE unless they back down on the mandate.

Still and all, it is very puzzling why neither the White House, Justice, or HHS doesn't want to reap the political kudos they will get from the right by striking this regulation down. They sure aren't getting any kudos from the left for NOT striking it down. Especially for Price and Sessions, it is hard to imagine any scenario (including incompetence) that actually explains their not acting on this, other than an explicit order from Trump, and that would be rather unexplainable too.